FRANCINE G SOLOMON V BRUCE B MOORE
Annotate this Case
Download PDF
STATE OF MICHIGAN
COURT OF APPEALS
FRANCINE G. SOLOMON,
UNPUBLISHED
June 15, 2004
Plaintiff-Appellee,
v
No. 250846
Wayne Circuit Court
LC No. 91-153259-DS
BRUCE B. MOORE,
Defendant-Appellant.
Before: Murphy, P.J., and Jansen and Cooper, JJ.
PER CURIAM.
In this child custody dispute, defendant appeals as of right from a circuit court order
awarding plaintiff sole physical custody of the parties’ four minor children. We affirm.
I
Beginning in the early 1990’s, the parties, who never married, entered into a series of
consent orders regarding the custody, support and parenting time of their children. In April
1999, the parties, who lived in Berkley, Michigan, entered a consent order that afforded them
joint legal and physical custody of the children. Defendant was awarded physical custody of the
four children from 5:30 p.m. Sundays through 5:30 p.m. Thursdays, and plaintiff was awarded
physical custody of the children on Thursdays through Sundays.1 The April 1999 order further
provided that should defendant move to another state, he could have sole custody of the children
during their school year.
In January 2001, the parties entered the most recent consent order of record, which
provided, concerning the parties’ custody periods, that defendant would have custody from 5:30
p.m. on Sundays through 5:30 p.m. on Thursdays. But the January 2001 order also contemplated
that nonconflicting provisions of the parties’ previous consent orders would remain effective.
1
Although the consent order provided that the custody times would alternate every other year,
the parties arranged that defendant consistently would maintain custody of the children from
Sundays through Thursdays.
-1-
In August 2001, plaintiff filed a motion for a temporary restraining order (TRO) to
prevent defendant’s planned relocation to Hawaii with the children. The circuit court granted
plaintiff’s request pending a hearing on the motion, but the court later dissolved the TRO
because it found that the parties’ consent orders specifically had envisioned defendant’s potential
relocation to another state with the children.
In September 2001, plaintiff filed a motion to modify the children’s custody arrangement,
and in November 2001, defendant filed a motion to restrict plaintiff’s parenting time with the
children. In the summer of 2002, a referee conducted a hearing regarding the parties’ motions,
and prepared a recommendation.
Defendant objected to the referee’s recommendation, and the circuit court held a custody
hearing in July 2003. At the time of the custody hearing, the children had spent nearly two years
living in Hawaii with defendant and his mother, while having summer and other occasional visits
with plaintiff. The circuit court found that the parties’ respective 2001 motions both had alleged
changed circumstances that warranted revisitation of the children’s custody arrangement, that the
children had an established custodial environment in Michigan in the joint physical custody of
the parties, and that its evaluation of the children’s best interests required that it award plaintiff
sole physical custody of the children.
II
Defendant first contends that the circuit court erred by holding the custody hearing
without first determining whether proper cause or changed circumstances existed that supported
a possible change in the children’s custody arrangement. In a child custody dispute, “all orders
and judgments of the circuit court shall be affirmed on appeal unless the trial judge made
findings of fact against the great weight of evidence or committed a palpable abuse of discretion
or a clear legal error on a major issue.” MCL 722.28. The court’s factual findings should be
affirmed unless the evidence clearly preponderates in the opposite direction. Phillips v Jordan,
241 Mich App 17, 20; 614 NW2d 183 (2000). “A trial court commits clear legal error when it
incorrectly chooses, interprets, or applies the law.” Id.
The Michigan Legislature has provided that in “a child custody dispute . . . submitted to
the circuit court as an original action,” the court may amend or modify “its previous judgments
or orders for proper cause shown or because of change of circumstances until the child reaches
18 years of age . . . .” MCL 722.27(1)(c). The party who requests a custody modification bears
“the burden of proving by a preponderance of the evidence that either proper cause or a change
of circumstances exists before the trial court can consider whether an established custodial
environment exists (thus establishing the burden of proof) and conduct a review of the best
interest factors.” Vodvarka v Grasmeyer, 259 Mich App 499, 509; 675 NW2d 847 (2003)
(emphasis in original), citing Dehring v Dehring, 220 Mich App 163, 165; 559 NW2d 59 (1996).
This Court recently defined a “proper cause” as a ground “relevant to at least one of the twelve
statutory best interest factors [contained in MCL 722.23], and . . . of such a magnitude [as] to
have a significant effect on the child’s well-being.” Vodvarka, supra at 512. And, this Court
described that for a party to establish a “change of circumstances,” it “must prove that, since the
entry of the last custody order, the conditions surrounding custody of the child, which have or
could have a significant effect on the child’s well-being, have materially changed.” Id. at 513
(emphasis in original).
-2-
We reject defendant’s suggestion that the circuit court improperly utilized evidence
presented during the hearing, which never should have occurred, to bolster its finding that
changed circumstances existed to warrant a revisitation of the parties’ custody arrangement. The
circuit court did not commit error requiring reversal when it delayed announcing its finding that
changed circumstances existed until after the custody hearing had concluded.
With respect to plaintiff’s allegations of changed circumstances, the circuit court made
the following determination:
[Plaintiff] alleges that there has been a change in circumstances because:
(1) . . . defendant has violated the joint custody order by moving the children to
Hawaii without telling her or discussing the move with her in advance; (2) . . .
defendant has failed to inform her when the children were in Michigan so she
could see them; (3) . . . defendant has refused to permit her to have contact with
the children in Hawaii; (4) . . . defendant does not personally take care of the
children and the children are primarily cared for by their grandmother; and (5) the
children prefer to live with [plaintiff]. These allegation [sic] are sufficient to
establish a change in circumstances sufficient to result in a change of custody.
The record reflects that by the time the custody hearing began, the circuit court was aware of the
parties’ specific allegations of changed circumstances. On September 11, 2001, shortly after the
circuit court entered an order dissolving plaintiff’s TRO prohibiting defendant’s departure for
Hawaii, plaintiff filed a motion for modification of custody and parenting time. Additionally, at
the beginning of the custody hearing, plaintiff’s counsel identified several allegedly changed
circumstances on which plaintiff relied, specifically that defendant had violated the parties’ joint
custody order by arbitrarily taking the children to Hawaii, and that defendant subsequently
inhibited plaintiff’s parenting time and contact with the children. Thus, the existing record
supports the circuit court’s findings with respect to some of the changed circumstances alleged
by plaintiff. Furthermore, defendant’s relocation of the children to Hawaii, far from their mother
in Michigan, in conjunction with his effort to curtail the children’s communications with
plaintiff, qualify as materially changed “conditions surrounding custody of the child, which have
or could have a significant effect on the child’s well-being.” Vodvarka, supra at 513.2
We conclude that the circuit court properly determined the existence of changed
circumstances before launching into any analysis or consideration of the existence of an
2
The circuit court also had knowledge of several changed circumstances alleged by defendant
that qualify as proper causes or changed circumstances according to Vodvarka, supra at 513. In
November 2001, defendant filed a motion to restrict parenting time in which he argued the
existence of the following changed circumstances: the abysmal condition of plaintiff’s house,
her neglect in leaving the children alone, her assault of defendant, her altercation with the police
in the children’s presence, her filing of false sexual abuse charges against defendant and Moore,
and her infliction of “emotional abuse on the children during phone conversations,” among
others. The circuit court accurately summarized these allegations, and found them “sufficient to
establish a change in circumstances.”
-3-
established custodial environment and the children’s best interests. Although the circuit court
did not issue its findings regarding changed circumstances until the conclusion of the hearing,
the court plainly was aware of the parties’ various allegations of changed circumstances. The
circuit court apparently and properly assumed the veracity of the parties’ allegations, which did
amount to changed circumstances, before it conducted the custody hearing. Vodvarka, supra at
512 (observing that a court need not conduct an evidentiary hearing to resolve the initial question
whether changed circumstances exist, but instead the court can accept as true the facts allegedly
comprising proper cause or a change of circumstances, and then decide if they are legally
sufficient to satisfy the standard).
III
Defendant next argues that the circuit court offered incomplete findings and analysis
concerning the parties’ 1999 and 2001 consent orders, which rendered unsound the court’s
determination that defendant had illegally removed the children from Michigan to Hawaii.
Resolution of this issue requires interpretation of the provisions of the parties’ 1999 and 2001
consent orders, which this Court treats as contracts between the parties. Massachusetts
Indemnity & Life Ins Co v Thomas, 206 Mich App 265, 268; 520 NW2d 708 (1994). “‘The
primary goal in the construction or interpretation of any contract is to honor the intent of the
parties’” as reflected within the contract language. UAW-GM Human Resource Ctr v KSL
Recreation Corp, 228 Mich App 486, 491; 579 NW2d 411 (1998), quoting Rasheed v Chrysler
Corp, 445 Mich 109, 127 n 28; 517 NW2d 19 (1994). When contract language appears clear and
unambiguous, the interpretation of its meaning involves a question of law. UAW-GM Human
Resource Ctr, supra at 491; Massachusetts Indemnity, supra at 268. In child custody matters,
this Court reviews for clear legal error the circuit court’s disposition of legal questions. MCL
722.28; Vodvarka, supra at 508.
On April 20, 1999, the circuit court entered a “Consent order modifying all prior orders
regarding custody, support and visitation.” Concerning custody of the children, the order
provided as follows:
IT IS FURTHER ORDERED that the parties have joint legal custody and
joint physical custody of their four minor children . . . until the further order of the
court.
***
IT IS FURTHER ORDERED that if defendant resides in the same state
then the above named children will reside with defendant from Sunday at 5:30
p.m. to Thursday at 5:30 p.m. each week and reside with plaintiff from Thursday
at 5:30 p.m. to Sunday at 5:30 p.m. on even numbered years, and reverse times on
odd numbered years. If defendant resides outside the State of Michigan, the
domicile of the children can be changed to that state and defendant will then have
physical custody of said children for the entire school year with plaintiff having
physical custody from 2 days after summer recess to 2 days before the school
term commences with transportation costs to be equally divided.
-4-
The parties agreed to forego any entitlement to support, and the order contained additional
provisions regarding uninsured medical expenses and the parties’ entitlements to claim the
children as income tax exemptions.
On January 22, 2001, the circuit court entered the “Second consent order modifying all
prior orders regarding custody, support and visitation,” which constitutes the most recent consent
order of record that contains provisions concerning custody of the children. This order provides,
in relevant part, the following:
IT IS HEREBY ORDERED that all prior orders heretofore entered in the
matter be modified as follows:
***
IT IS FURTHER ORDERED that all four children stay in defendant’s
custody from 5:30 p.m. Sunday to 5:30 p.m. Thursday each week, or until the
further order of the court.
IT IS FURTHER ORDERED that all prior orders heretofore entered in
this matter which provisions are not in conflict with provisions herein shall
remain in full force and effect.
The only other, nonintroductory, paragraph of the order pertains to the parties’ authority to claim
particular children as tax exemptions.
The language of these orders appears clear and unambiguous. The first substantive
sentence of the January 2001, order instructs that its provisions intend to modify all existing
orders, a category that includes the April 1999, consent order. The parenting time paragraph of
the January 2001, order, the same paragraph that previously had explicitly authorized defendant
to have primary physical custody of the children should he move out of state in the April 1999
order, eliminated any reference to such authority. The paragraph instead briefly and plainly
provides that defendant shall have physical custody of the children only “from 5:30 p.m. Sunday
to 5:30 p.m. Thursday each week.” The removal of the out-of-state relocation clause from the
parenting time paragraph evidences the parties’ intent to modify the April 1999 parenting time
paragraph.
Defendant suggests that the last sentence of the January 2001, order, which contemplates
the continued viability of “all prior orders . . . which provisions are not in conflict with
provisions herein,” intends to preserve his authority to relocate with the children outside
Michigan. But defendant’s argument ignores the clear and unambiguous modification of the
parenting time provision by the January 2001, order. The clause of the January 2001, order
providing for the continued viability of the April 1999 order envisions only the retention of prior
provisions not in conflict with those of the January 2001, consent order. The parenting time
paragraph in the January 2001, order unambiguously awards defendant physical custody of the
children from 5:30 p.m. Sundays through 5:30 p.m. Thursdays. Because defendant’s potential to
have primary physical custody of the children in another state cannot be reconciled with his right
as stated within the January 2001, order to have physical custody only four days each week, the
last clause of the January 2001, order plainly precludes the enforceability of the previous and
-5-
conflicting authorization for defendant to move the children out of state. In light of the plain
language of the parties’ consent orders, we conclude that the circuit court did not commit clear
legal error in interpreting the parties’ January 2001 agreement as precluding defendant’s
relocation with the children to Hawaii.
Defendant also suggests that the circuit court failed to take into account that the court’s
prior order of September 2001 that had authorized defendant to relocate the children to Hawaii.
On August 9, 2001, the circuit court entered an order granting plaintiff’s petition for a TRO
against defendant taking the children to Hawaii:
IT IS HEREBY ORDERED that the Respondent, his agents, servants,
employees, representatives or those acting in concert with him, be restrained and
prohibited from removing the minor children of the parties from the State of
Michigan.
IT IS FURTHER ORDERED that as the parties have joint physical
custody of the minor children of the parties, the Respondent is to relinquish
physical possession of the minor children of the parties for Petitioner’s regularly
scheduled custody time commencing Thursday, August 9, 2001 . . . .
During the brief August 10, 2001, hearing, regarding plaintiff’s motion, the court opined that the
“prior orders dealing with the situation” expressly permitted defendant’s move to Hawaii with
the children. Accordingly, on September 6, 2001, the circuit court entered an “Order dismissing
motion and terminating temporary restraining order,” which provides as follows:
IT IS HEREBY ORDERED that the motion for temporary restraining
order to prevent respondent from leaving the state of Michigan with the minor
children of the parties be dismissed and the Temporary Restraining Order dated
8/9/01 is set aside as of 8/10/01.[3]
The language of the September 6, 2001, order plainly reflects that, contrary to what defendant
suggests, it did not purport to vest in him the right to take the children to Hawaii, or otherwise to
modify the terms of the preexisting custody orders. By its terms, the order merely vacated the
emergency TRO that plaintiff had secured in August 2001. Because the September 2001 order
has no relevance to the question of the children’s proper custody at the time that defendant
relocated them to Hawaii, the circuit court did not err by failing to consider the September 2001
order when it analyzed the meanings of the April 1999 and January 2001 consent orders.4
3
The only subsequent orders that affected custody awarded plaintiff specific periods of parenting
time.
4
In support of the circuit court’s finding that defendant knowingly and illegally relocated the
children to Hawaii, it noted several facts of record, including that defendant gave plaintiff no
notice when he left with the children and did not permit them to bid plaintiff farewell. To the
extent that defendant challenges these findings as against the great weight of the evidence, we
(continued…)
-6-
IV
Defendant further asserts that the circuit court mistakenly determined that the children
had no established custodial environment in Hawaii in the care of defendant and his mother.
According to MCL 722.27(1)(c), which sets forth standards governing whether a child lives in an
established custodial environment:
[t]he court shall not modify or amend its previous judgments or orders or issue a
new order so as to change the established custodial environment of a child unless
there is presented clear and convincing evidence that it is in the best interest of the
child. The custodial environment of a child is established if over an appreciable
time the child naturally looks to the custodian in that environment for guidance,
discipline, the necessities of life, and parental comfort. The age of the child, the
physical environment, and the inclination of the custodian and the child as to
permanency of the relationship shall also be considered.
“‘In determining whether an established custodial environment exists, it makes no difference
whether the environment was created by a court order, without a court order, in violation of a
court order, or by a court order that was subsequently reversed.’” Heltzel v Heltzel, 248 Mich
App 1, 33 n 22; 638 NW2d 123 (2001), quoting Hayes v Hayes, 209 Mich App 385, 388; 532
NW2d 190 (1995).
Abundant evidence supports the circuit court’s finding that, through September 2001, the
children had an established custodial environment in Michigan in the joint physical custody of
both parents, who provided for their emotional, physical and educational needs and discipline.
But because the existence of an established custodial environment may arise even under
circumstances that constitute the violation of a court order, the circuit court incorrectly relied on
its perceived illegality of defendant’s relocation to Hawaii in support of its finding that the
children had no established custodial environment there. Heltzel, supra at 33 n 22.
Nonetheless, ample evidence substantiates the circuit court’s determination that neither
the children nor plaintiff viewed as a permanent custody arrangement the children’s residence in
Hawaii with defendant and his mother. After entry of the September 6, 2001, order dismissing
plaintiff’s motion for a TRO, plaintiff filed a motion seeking the children’s return to Michigan
and her custody on September 11, 2001. While plaintiff’s motion remained pending, she
obtained several orders that permitted her specific periods of parenting time. All four children
expressed to court-employed psychologist Charles Rooney their fondness of or preference for the
cold weather, their brothers and a friend in Michigan, their Berkley school, and their dislike of
the hot weather in Hawaii. Plaintiff testified that on several occasions “the children did ask me if
they were coming home for good.” The children also expressed to the circuit court their
preference to live in plaintiff’s Michigan home.
(…continued)
reject this suggestion because the testimony of both plaintiff and defendant concurred that when
defendant and the children began their trip to the coast in August 2001, defendant gave no notice
of their departure, did not arrange for the children to say farewell to plaintiff, and only called
plaintiff from the road after his and the children’s departure.
-7-
As defendant argues, the circuit court did not expressly recognize his and his mother’s
efforts to satisfy the children’s primary needs between September 2001 and the custody hearing,
but the court did correctly find that plaintiff’s and the children’s views of the children’s
residence in Hawaii as a temporary arrangement weighed against a finding that the children had
an established custodial environment in Hawaii with defendant and defendant’s mother. Vander
Molen v Vander Molen, 164 Mich App 448, 457-458; 418 NW2d 108 (1987) (explaining that to
discern whether a child looks naturally to the custodian in a certain environment for discipline,
guidance, life’s necessities and parental comfort, a court needs to consider the conduct and
attitudes of the parents and children). Furthermore, although the ultimate custody hearing on
plaintiff’s September 6, 2001, motion to change custody did not occur until nearly two years
after she filed her motion, this Court has observed that the fact of a pending custody hearing may
preclude a finding that the environment in which the children resided pending the hearing
qualified as an established custodial environment. Bowers v Bowers, 198 Mich App 320, 326;
497 NW2d 602 (1993) (finding no expectations of permanence in the child’s placement because
of the upcoming custody trial). Given the pending litigation in this case and the evidence that
neither plaintiff nor the children viewed the children’s residence in Hawaii as a permanent
arrangement for their care, it appears that “at the time of trial there had been no ‘appreciable
time’ (during which) the child[ren] naturally look(ed) to [their] father alone ‘for guidance,
discipline, the necessities of life and parental comfort’ in a stable, settled atmosphere in order
that an ‘established custodial environment’ within the meaning of [MCL 722.27(1)(c)] could
exist.” Baker v Baker, 411 Mich 567, 582; 309 NW2d 532 (1981). Consequently, we cannot
conclude that the circuit court found against the clear weight of the evidence that the children did
not have an established custodial environment in Hawaii. MCL 722.27(1)(c); MCL 722.28.
Even assuming that the circuit court mistakenly failed to recognize that the children had
an established custodial environment in Hawaii, this error would qualify as harmless in this case.
When children have an established custodial environment, before making a change in their
custody arrangement a court must find by clear and convincing evidence that such a change
would serve the children’s best interests. MCL 722.27(1)(c). In this case, in which the circuit
court ultimately modified the children’s established custodial environment, the court expressly
and repeatedly acknowledged that it had to find clear and convincing evidence to warrant a
change in the children’s custody arrangement, and manifestly evaluated the best interest factors
under MCL 722.23 pursuant to the clear and convincing standard of proof.
Furthermore, defendant does not raise within his statement of questions presented a
specific challenge to the circuit court’s evaluation of the best interest factors, or the court’s
ultimate conclusion that clear and convincing evidence warranted an award to plaintiff of sole
physical custody of the children. McGoldrick v Holiday Amusements, Inc, 242 Mich App 286,
298; 618 NW2d 98 (2000).5 The circuit court’s lengthy evaluation of facts concerning the
5
Within defendant’s argument concerning his third issue, he asserts in one sentence that the
circuit “court has further committed reversible error in the evaluation of the best interest factors.”
Because defendant offers no relevant facts or authority in support of this claim, he has
abandoned appellate review of this proposition. Lee v Robinson, ___ Mich App ___; ___ NW2d
___ (Docket No. 252476, issued March 25, 2004), slip op at 4; Steward v Panek, 251 Mich App
(continued…)
-8-
children’s best interests reflects the court’s awareness of the detailed testimony presented in this
case. Without reanalyzing each best interest factor individually, we observe that in light of the
following evidence, the circuit court did not find against the great weight of the evidence that
best interest factors (a), (b), (d), (e), (i), (j) and (l) clearly and convincingly favored plaintiff,
while the remaining factors favored neither party: (1) until 2001, plaintiff made herself available
to care for the children’s emotional and physical needs, and arranged for their educations and
participation in extracurricular activities, which plaintiff frequently attended; (2) defendant
worked two jobs in Hawaii, necessitating that his mother primarily provide for the children’s
care and custody there; (3) defendant sometimes struck the children to discipline them, took the
children to church without consulting plaintiff, and falsely portrayed plaintiff as a neglectful
mother; (4) plaintiff’s house where the children resided in Michigan currently appears welltended and is located near the children’s school, friends and relatives, all of which the children
missed in Hawaii; (5) the children have a close relationship with their half brothers, one of whom
still lives with plaintiff and the other of whom lives near plaintiff; (6) the children, aged thirteen,
nine and 6-1/2 years at the time of the custody hearing, all expressed that they “consider
Michigan their home . . . miss their brothers, their friends and family here,” and “strong[ly]
desire to live in Michigan and to reside with [plaintiff] during the school year”; (7) defendant (a)
in a somewhat devious manner, removed the children from Michigan in violation of the January
2001 consent order and without advising plaintiff of their imminent departure for Hawaii, (b)
once in Hawaii, attempted to minimize plaintiff’s telephone and email contacts and parenting
time opportunities with the children, and (c) failed to share with plaintiff, who had joint legal
custody of the children, many significant details of the children’s lives in Hawaii; and (8) the
young twins had only seven or eight opportunities to visit plaintiff during their approximate twoyear stay in Hawaii. To the extent that the circuit court plainly credited plaintiff’s testimony in
various respects over that of defendant and his witnesses, this Court will not second-guess the
court’s credibility determinations. Mogle v Scriver, 241 Mich App 192, 201; 614 NW2d 696
(2000).
Because the record supports the circuit court’s finding by clear and convincing evidence
that the children’s best interests required a change in the parties’ joint physical custody
arrangement, we cannot conclude that the court abused its discretion by ultimately awarding
plaintiff sole physical custody of the children. Vodvarka, supra at 507-508.
V
Defendant additionally avers that the circuit court failed to consider his post-trial offer of
newly discovered proof that the state had rejected plaintiff’s appeal of the denial of her
application for a day care license. We decline to consider this argument because defendant
supplies no authority in support of his contention that at the post-trial stage of the proceedings,
he had a fundamental right to introduce evidence in support of his position. Lee v Robinson, ___
(…continued)
546, 558; 652 NW2d 232 (2002). Although defendant includes a second sentence arguing that
the court “is to be restricted to evaluation of facts that have occurred since the entry of the prior
court order,” defendant does not present authority for the proposition that a court may not
consider past case history in determining the best interests of the children pursuant to MCL
722.23. Lee, supra, slip op at 4.
-9-
Mich App ___; ___ NW2d ___ (Docket No. 252476, issued March 25, 2004), slip op at 4.
Defendant also entirely fails to even suggest that the circuit court’s refusal to consider his
proffered evidence somehow prejudiced him.6 MCR 2.613(A); MRE 103(a).
VI
Defendant next suggests that the circuit court exceeded the scope of a permissible in
camera interview of the children, and improperly relied in its ruling on the impermissible
information it obtained during the in camera interview. Whether the circuit court exceeded
judicially crafted restrictions on the in camera interview of a child in a custody dispute
constitutes a question of law, which this Court considers de novo. Bloomfield Twp v Oakland Co
Clerk, 253 Mich App 1, 18; 654 NW2d 610 (2002).
In child custody disputes, the circuit court conducts in camera interviews of children old
enough to express custody preferences. MCL 722.23(i); Molloy v Molloy, 247 Mich App 348,
357; 637 NW2d 803 (2001), affirmed in part, vacated in part 466 Mich 852 (2002).
This Court has held that “a child’s in camera interview during custody
proceedings must be limited to a reasonable inquiry into the child’s parental
preferences,” because “when the in camera interview is used for fact finding it
invites numerous due process problems.” Molloy[, supra at 351.] But, “the
interview should not take place in a vacuum,” and “inquiry must be made in order
to test the authenticity, the motives, and the consistency of the preference. Often
a good interview will result in information that affects other child custody
factors.” Id. at 353. [Thompson v Thompson, ___ Mich App ___; ___ NW2d ___
(Docket No. 250504, issued March 23, 2004), slip op at 7.]
During an August 1, 2001, hearing on defendant’s motion to amend the circuit court’s
findings and conclusions, the court disclosed the following information in the course of
describing its reasoning for denying defendant’s motion:
[T]here’s no question in my mind that [plaintiff] would still prevail for all
the reasons I set forth under the individual child custody factors. She prevailed in
almost all of them, and the evidence was clearly on her side. It was clear that
[defendant] undertook a clear course of conduct to alienate [plaintiff] and her
children permanently. [Defendant] hits the children, for only minor and normal
mistakes of children. [Defendant] works two jobs and is rarely home, and leaves
his mother to care for the needs of these children. The children are very unhappy
in his custody and want to be with their mother and two other brothers. And
while this Court did not previously disclose all the things the children said, and
I’m not going to disclose all of them now, they did tell me other things, including
the fact that when their [sic] and his girlfriend took them on a camping trip,
6
The circuit court’s lengthy analysis did not take into account the fact that plaintiff’s day care
license application may or may not have been denied.
-10-
[defendant] and his girlfriend had sex in the tent with the children in the tent with
him. I mean, his conduct is not good with these children. [Emphasis added.]
A review of this transcript excerpt reveals that, contrary to defendant’s suggestion on appeal, the
circuit court did not explicitly state that it had learned, during the in camera interview, of
defendant’s striking of the children and the fact that defendant worked two jobs and often left the
children in his mother’s care. During plaintiff’s custody hearing testimony, she suggested that
defendant sometimes hit the children, and the record contained ample evidence that defendant’s
mother primarily cared for the children while defendant worked two jobs.7
The children’s expressions of unhappiness in defendant’s custody and their desire to live
with plaintiff and their brothers in Michigan constitute precisely the type of custody preference
that the in camera interview intends to elicit. The only remaining information that the court
learned during the in camera interview concerned defendant’s act of sexual intercourse with his
girlfriend while inside a tent that contained the children. The information arguably has little
bearing on the children’s parental preference under MCL 722.23(i). But in light of the fact that
the circuit court did not rely on or hint that it used the information, regarding defendant having
sexual intercourse with his girlfriend while the children were in the tent, within its custody
ruling, including its findings regarding the parties’ moral fitness, we fail to recognize what
prejudice defendant suffered from the court’s possession of this knowledge. Because defendant
fails to explain with specificity what prejudice this information may have occasioned, we
conclude that any impropriety during the court’s in camera interview qualifies as harmless.
MCR 2.613(A); Thompson, supra, slip op at 7.
We disagree with defendant’s further suggestion that the circuit court improperly
imported into its evaluation of best interest factors (d) and (e) the information it learned during
the in camera interview of the children. Within the circuit court’s analysis of factor (d), the
“length of time the child has lived in a stable, satisfactory environment, and the desirability of
maintaining continuity,” the court noted that the children all preferred to live in Berkley because
they enjoyed the cold weather in Michigan and disliked the heat and their lack of friends in
Hawaii. The custody hearing transcript reflects that Rooney testified to all these facts, which he
observed during his evaluation of the children. Therefore, it does not appear that the circuit court
conducted secret in camera questioning of the children that it then utilized in evaluating factors
beyond the children’s preferences. Furthermore, the children’s feelings or impressions regarding
their competing places of residence in Berkley and Hawaii plainly appear relevant to the question
whether they had a stable or satisfactory environment in either location.8 MRE 401.
7
Even assuming that the circuit court gleaned this information from in camera interviews with
the children, inquiries regarding the children’s care and discipline while in defendant’s custody
appear appropriately “intended to encourage the children to open up about their parental
preference, and to [elicit] a descriptive response to give the trial court a more specific indication
of the parental preference of the children.” Thompson, supra, slip op at 7.
8
Defendant cites no authority in support of the notion that a court evaluating the best interest
factors may not consider evidence of record that has some relevance to the children’s preferences
(continued…)
-11-
With respect to factor (e), the “permanence, as a family unit, of the existing or proposed
custodial home or homes,” the circuit court mentioned that the children appeared “close to [their
half brother] Dane,” said that they “missed their brothers and wanted to be able to see them more
often,” and expressed that “they missed not seeing their cousins and attending family functions.”
A review of the custody hearing record shows that (1) plaintiff testified that the children (a) had
half brothers in Berkley that they treated as full siblings, and (b) enjoyed regular holiday
gatherings with their extended maternal family members; (2) Rooney testified regarding the
oldest child’s statements that he had spent a lot of time with the children’s half brother; and (3)
Rooney’s written report, which the court admitted into evidence, opined that “[a]ll four boys
seem to be missing their friends and familiar habitat in Michigan.” Therefore, once again, there
appears no danger that the circuit court conducted secret in camera questioning of the children
that it then employed to address factors beyond the children’s preferences. Furthermore, the
nature of the children’s relationships with their half siblings and maternal relatives plainly had
relevance to the permanence of the proposed family unit in Berkley. MRE 401.
Lastly, we decline to consider defendant’s suggestion that the circuit court was biased
against him. Defendant at no time raised before the circuit court a challenge to its impartiality,
and therefore has waived appellate review of this issue. MCR 2.003(A), (C); Evans & Luptak v
Obolensky, 194 Mich App 708, 715; 487 NW2d 521 (1992). Furthermore, defendant neglects to
set forth any allegation regarding the circuit court’s possession of an actual, personal and
extrajudicial bias against him or his counsel, but merely relies on the court’s ultimate findings of
fact and legal conclusions in plaintiff’s favor, which rulings alone generally do not support the
existence of judicial bias. Cain v Dep’t of Corrections, 451 Mich 470, 495-496; 548 NW2d 210
(1996).
Affirmed.
/s/ William B. Murphy
/s/ Kathleen Jansen
/s/ Jessica R. Cooper
(…continued)
when analyzing best interest factors other than factor (i). Lee, supra, slip op at 4. Defendant
cites only Malloy, supra at 348, which addressed information regarding the children’s
preferences that the court obtained during an in camera interview.
-12-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
